Standing to Pursue a Rule 60 Motion

We discussed here last week the case of Doe v. Smith, the adoption case in which an adoption judgment was set aside for fraud on the court, and which was affirmed by the MSSC. The fraud was the intentionally false statements in the Consent to the adoption and in the testimony of the natural mother, Katy, that she did not know who was the natural father of the child to be adopted.

One of the issues raised on appeal by Catherine, the adoptive mother, was that Stan, the natural father, had no standing to file a R60 motion assertng the fraud issue in the adoption for the reason that he was not a party to the adoption.

In its decision, rendered September 22, 2016, the court rejected Catherine’s argument. Justice Maxwell for the court:

¶20. Catherine is correct that Stan was not a party to Matthew’s adoption. Honing in on this fact, she argues that Rule 60(b)(1) relief from the adoption decree is unavailable to Stan because he was a nonparty. See In re Adoption of A.S.E.L., 111 So. 3d 1243, 1249-51 (Miss. Ct. App. 2013). However, Catherine is viewing Katy’s misdeeds as “fraud . . . of an adverse party”—the type of fraud discussed in that case. Id. But Katy’s deceptions and omissions were not mere frauds of an adverse party. Rather, the judge found they had caused a “fraud upon the court.” M.R.C.P. 60(b)(6). And Rule 60(b)(6) authorizes courts to hear “independent actions”—such as the one filed by Stan—to set aside a “judgment for fraud upon the court.” M.R.C.P. 60(b)(6).

¶22. The independent-action principle has been applied by the court of appeals to a
nonparty’s complaint to set aside a judgement.[Fn 17] See In re Estate of Pearson, 25 So. 3d 392, 395 (¶ 14) (Miss. Ct. App. 2009). In Pearson, an unwed, natural father petitioned the chancery court to set aside the final judgment closing his minor daughter’s estate. The father did so because the natural mother fraudulently excluded him as an heir. Id. at 393 (¶ 3). The natural mother, in the petition to determine heirs, swore she was unaware of the natural father’s name and averred the natural father was deceased. Id. at 393 (¶ 2). As in Pearson, Stan, a nonparty, filed an action raising the natural mother’s falsities as a fraud upon the court. And while Stan did file his petition under the same cause number as Matthew’s adoption, he named new parties to the proceedings and issued numerous summons to each named party.

¶23. But Catherine argues that Stan’s only basis for standing is under Mississippi Code
Section 93-17-5(3). And this would require the chancellor to make findings under
Mississippi Code Section 93-17-6(4) to determine whether Stan was entitled to notice and to be made a party under Section 93-17-5. Catherine is correct that these statutes previously have been used by unwed, putative fathers to enter an appearance and contest an adoption. But again, there is a distinction between “fraud . . . of an adverse party” and “fraud upon the court.” Stan was not trying to establish his right to notice or object to ongoing adoption proceedings. He was arguing to set aside a final adoption obtained through fraud. And when compelling circumstances exist, Rule 60(b)(6) authorizes trial judges to set aside judgments obtained by a fraud upon the court.

¶24. We find that Stan’s petition was an independent action under Rule 60(b)(6). And as an independent action, the chancellor had authority to rule on Stan’s petition based on fraud upon the court.

So there is a right of a non-party to bring an independent action under R60(b)(6) where “compelling circumstances exist.”

I don’t know about you, but I find it hard to wrap my mind around Catherine’s argument. Stan’s omission from the original action was a direct result of fraud that concealed his parenthood and, ergo, his necessity to be joined as a party, from the court. The fraud resulted in a proceeding in which he was not invited to participate, and which resulted in a judgment of which he had not notice. So, under Catherine’s theory, he now must be barred from filing a R60 motion because he did not participate as a party, even though that was due to fraud? That makes no sense to me.